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2022 DIGILAW 2088 (MAD)

A. Venkatachalam v. C. Jayakumar

2022-07-14

K.KUMARESH BABU

body2022
JUDGMENT : (Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, praying set aside the fair and decretal order dated 22/12/2015 in I.A.No.186 of 2015 in O.S.No.544 of 2014 on the file of the learned IV-Additional District and Sessions Judge, Coimbatore.) 1. The present Revision Petition has been filed challenging the fair and decretal order made in I.A.No.186 of 2015 in O.S.No.544 of 2014 on the file of the IV- Additional District and Sessions Judge, Coimbatore, wherein, the learned Judge had dismissed the petition filed by the petitioner/ defendant seeking to reject the plain under Order VII Rule 11(d) and Section 151 C.P.C. 2. The case of the petitioner is that the petitioner and the respondent had entered into a Memorandum of Understanding dated 10.07.2014, under which the petitioner had agreed to sell his house to the respondent. The petitioner and the respondent had agreed to execute a registered sale agreement within 90 days from the date of Memorandum of Understanding. 3. The petitioner had received a sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs) for which a receipt has been made on the reverse page of the first sheet of the MOU. The respondent had failed to pay 1/3rd of the total consideration within 90 days as stipulated in the MOU. The respondent had issued a legal notice on 26.09.2014 which was suitably replied to by the petitioner on 29.09.2014 for which the respondent had sent a rejoinder. The dispute between the parties arose on the allegation that the petitioner had not produced any documents for verifying the title deeds, to prepare the sale agreement. The respondent had filed a suit for return of sum of Rs. 25,00,000/- together with interest at the rate of 18% per annum and also for damages. The suit itself is not maintainable as the MOU is only an arrangement and not a legally valid document which could be enforced in the Court of law. Hence, the petitioner had filed an application to reject the suit. 4. Countering the case of the petitioner, the respondent had claimed that the plaint is for recovery of money paid under the Memorandum of Understanding and not a plaint seeking to enforce the memorandum of understanding. The averments made in the plaint alone have to be taken into consideration and hence, there is no merit in the application and is liable to be rejected. 5. The averments made in the plaint alone have to be taken into consideration and hence, there is no merit in the application and is liable to be rejected. 5. The Court below, after considering the arguments made by both the parties, had rejected the application filed under Order VII Rule 11, holding that the issues raised in the application would have to be substantiated by the parties by adducing the oral and documentary evidence and the plain reading of the plaint shows that there exists a cause of action and the suit is not barred by any law. 6. Being aggrieved against the said order, the petitioner had filed the instant revision petition. 7. Heard Mr.C.R.Prasanan, learned counsel for the petitioner and Mr.C.Veeraraghavan, learned counsel for the respondent and perused the materials available on record. 8. The case of the petitioner is that the plaint has been lodged based on a Memorandum of Understanding which is not a registered document. Further, the said Memorandum of Understanding has been entered to execute an agreement of sale and hence, the said Memorandum of Understanding is not a concluded contract to maintain the suit. It was also his case that the Memorandum of Understanding contained a forfeiture clause which would bar the respondent/ plaintiff to seek the return of the advance. 9. The petitioner to substantiate his arguments, has also relied upon the following judgments :- 1. Case law in Nithayya Thevar Vs. Subramanian Ambalakarar reported in 1970 (1) MLJ 400 . 2. Case law in H.G. Krishna Reddy and Co. Vs M.M. Thimmiah and another reported in AIR 1983 Mad 169 . 3. Case law in National Properties Ltd., Vs Batta India Limited reported in AIR 2001 Cal 177 . 4. Case law in M. Gnanasambandam (died) and others Vs. M.Raja Appar and others reported in 2009 (2) CTC 819 . 5. Case law in Speech and Software Technologies (India) Pvt., Ltd., Vs NEOS Interactive Ltd., reported in (2009) 1 SCC 475 . 10. On the contrary, the learned counsel for the respondent had submitted that the plaint has been laid based on payment made as advance under the MOU in which the petitioner had made an endorsement acknowledging the receipt of a sum of Rs.25,00,000/-. 10. On the contrary, the learned counsel for the respondent had submitted that the plaint has been laid based on payment made as advance under the MOU in which the petitioner had made an endorsement acknowledging the receipt of a sum of Rs.25,00,000/-. The present suit is simpliciter praying for the return of Rs.25,00,000/- along with the interest at the rate of 18% per annum apart claiming the damages of Rs.5,00,000/-, on the pleadings that it was the petitioner/ defendant who had failed to perform his part and that he had also suppressed the existence of facts which created a cloud over the title of the property. He also further argued that in an application under Order VII Rule 11 only the averments made in the plaint had to be looked into and nothing else. 11. It is a trite law that while considering an application under Order VII Rule 11(d), the Court is not emboldened to look into any other pleadings, documents, evidence except to look into the averments made in the plaint and the documents filed therewith. 12. The dispute between the parties is whether the MOU is a concluded contract pr not. Whether the amount paid is liable to be forfeited. Both the issues had to be dealt with only by looking into the oral and documentary evidence to be produced by both the parties. A plain reading of the plaint would only suggest that the petitioner/ plaintiff has received a sum of Rs.25,00,000/- from the respondent for entering into an agreement in respect of the suit property. The conditions stipulated under the MOU are that the respondent has to pay 1/3rd amount within a period of 90 days from the date of the MOU and that if the respondent fails to comply with any of the conditions, the amount paid by him shall stand forfeited. Even before the said period of 90 days stipulated to execute the sale agreement, the disputes had arisen in respect to the title of the property and hence no further course as contemplated under MOU took place. The claim of the petitioner as stated supra could only be decided after conducting a full fledged trial. Further, the plaint is not for enforcement of the memorandum of understanding but for a recovery of money paid as advance under the MOU. The claim of the petitioner as stated supra could only be decided after conducting a full fledged trial. Further, the plaint is not for enforcement of the memorandum of understanding but for a recovery of money paid as advance under the MOU. Hence, the question of not being a concluded contract would be of no significance and in my considered opinion, it could not be a reason to reject the plaint under Order VII Rule 11 C.P.C. 13. The judgment relied upon by the petitioner in Nithayya Thevar Vs. Subramanian Ambalakarar reported in 1970 (1) MLJ 400 would not be applicable to the facts of the case. The ratio laid down in the said judgment is that the Court would be entitled to look into the documents forming a part of the plaint while deciding the application under Order VII Rule 11, I have no hesitation to accept the said ratio. 14. The judgments relied upon in H.G. Krishna Reddy and Co. Vs M.M. Thimmiah and another reported in AIR 1983 Mad 169 and case law in National Properties Ltd., Vs Batta India Limited reported in AIR 2001 Cal 177 are the judgments which propound ratio on the facts of that case in determining whether the contract entered to is a concluded contract or not for granting relief. In the present case on hand, the suit is not for a specific enforcement of the memorandum of understanding. The said issue further, cannot be gone into in an application under Order VII Rule 11(d) as the Court will have to travel beyond the averments made in the plaint to decide the same. 15. The judgment relied upon by the petitioner in M. Gnanasambandam (died) and others Vs. M.Raja Appar and others reported in 2009 (2) CTC 819 would also not be applicable to the facts of the case. The plaint that was rejected in that suit was for a specific performance of a memorandum of understanding. The case on hand is not for a specific performance of a memorandum of understanding but to refund of money paid under the memorandum of understanding. 16. In view of the above discussions, I am of the considered opinion that no interference is called for of the impugned order made by the Court below in I.A.No.186 of 2015 in O.S.No.544 of 2014 on the file of the learned IV Additional District and Sessions Judge, Coimbatore. 16. In view of the above discussions, I am of the considered opinion that no interference is called for of the impugned order made by the Court below in I.A.No.186 of 2015 in O.S.No.544 of 2014 on the file of the learned IV Additional District and Sessions Judge, Coimbatore. 17. Considering the pendency of the suit for more than eight years, the learned Trial Judge is hereby directed to dispose of the suit as expeditiously as possible. 18. In the result this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also closed.